Quadriplegic Veteran|Can Seek More From VA

     MANHATTAN (CN) – A veteran rendered quadriplegic by botched surgery at a VA hospital may appeal his $4.5 million damages award, including court-ordered reductions because he could get free medical care from the VA, which injured him, the Second Circuit ruled.
     Charles Malmberg underwent surgery in November 2004 to remove a degenerative disc and osteophytes at the Veteran’s Administration Medical Center in Syracuse.
     After the surgery, X-rays and an MRI showed he suffered from mild spinal cord impingement at several points, with excessive edema in the spinal cord. He was diagnosed with incomplete quadriplegia shortly thereafter.
     Malmberg filed a malpractice claim against the VA in January 2006, to which the VA failed to respond. He sued in August 2006 and the VA was found liable for his injuries. Malmberg cannot use his legs, cannot stand, and will be confined to a wheelchair and require assistance for the rest of his life.
     A bench trial began in December 2012, and the Northern District of New York awarded Malmberg $4,468,860 in damages in August 2014.
     Malmberg appealed, arguing in part that the court “abused its discretion by offsetting the award for future medical care and benefits by subtracting out for services that could be provided by the VA for free thus forcing him to receive medical services from his tortfeasor rather than choosing his own medical providers”.
     He also claimed the court wrongfully denied his motion to amend his ad damnum clause to increase the amount of damages he sought and awarded him only $2 million in damages for past and future pain and suffering, which is lower than comparable awards from New York state courts for similar injuries.
     On Friday, the Second Circuit agreed with most of Malmberg’s arguments and vacated the judgment. Writing for the three-member panel, Second Circuit Judge Rosemary Pooler found that “federal law does not require an offset against a veteran’s damages award for future medical care that could be provided at a VA facility,” and that “federal law disfavors an outcome whereby a litigant is ‘obligated to seek medical care from the party whose negligence created his need for such care simply because that party offers it without charge.'”
     Citing the Third Circuit ruling in Feeley v. United States, Pooler ruled that “a victim of another’s tort is entitled, we think, to choose, within reasonable limits, his own doctor and place of confinement, if such care is necessary. To force a plaintiff to choose between accepting public aid or bearing the expense of rehabilitation himself is an unreasonable choice.”
     Pooler said the District Court also erred in deducting the cost of free VA care from Malmberg’s award: “if the plaintiff seeks medical care from a non-VA provider – which, as discussed, is his prerogative – the costs of that medical care cannot be regarded as ‘replaced or indemnified’ merely because the plaintiff elected not to accept the opportunity to receive free medical care from the VA.”
     The unanimous panel also ruled that the District Court should have heard Malmberg’s motion to increase damages in his ad damnum of May 2013, as “the record was materially different” by then. During the bench trial, Malmberg’s physician at the VA testified that the extent of Malmberg’s deterioration was not foreseeable in 2006 when the case was filed.
     Pooler also ruled that the District Court failed to provide sufficient rationale for its award. She found that the court did not “point to a single case or jury award to support its conclusion that the range in New York for pain and suffering awards for plaintiffs who suffered permanent and catastrophic injuries ‘is normally between $500,000 and $1.5 million.’ Indeed, the only quadriplegia cases it cited appear in a footnote, and each provides for a far greater recovery than the district court awarded here.”
     The case was remanded for further proceedings with directions that the District Court consider anew Malmberg’s motion to increase the ad damnum, taking into account the testimony of his doctor. The remand also instructed the court to “determine damages without an offset for future receipt of medical care and supplies from the VA, consistent with this opinion.”
     Also on the panel were Second Circuit Judge José Cabranes, and U.S. District Judge Paul Gardephe, from the Southern District of New York, sitting by designation.

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